My lid came off in a crash — do I settle?

My lid came off in a crash — do I settle?

I was involved in a fairly nasty crash. I have no memory of it but my helmet came off. I had some spectacular looking cuts and bruises to my face but, other than that, the helmet coming off has not had any long-term Impact.

My solicitor is telling me I need to take a 10 per cent reduction for my damages, as my helmet was not buckled at the time of the collision. A case has been mentioned to me, Capps v Miller (1989), where the rider had his damages reduced by 10 per cent because his helmet came off. I am not a mug. My helmet was always buckled but my solicitor is saying because I cannot remember buckling the helmet (I can’t remember the entire day leading up to the accident) I have to take the reduction.

He has quoted some Latin at me, “res Ipsa loquitur”, which he has tried to explain but I just don’t get. The 10 per cent makes about a £4000 difference to my case. Should I fight on?

Answer

Your solicitor, who is at a pretty good firm, is wrong. Everything else about your case has been done perfectly properly but on this one he has got the law of evidence and the law on “contributory negligence” wrong. In Capps v Miller there was no doubt, the rider did not have his helmet buckled. Detailed forensic tests made this clear. In your case no one has examined the helmet and it’s the insurers who have to prove your helmet was unbuckled. A competent but non-specialist solicitor has made an understandable leap of illogic – “Your helmet came off, helmets don’t come off if they are buckled, so the helmet was unbuckled.”

Your solicitor has also got a fundamental principle of law wrong. He has told you that, as you had control of your helmet and it has inexplicably failed, you will be found to blame. That is the basis of “res Ipsa loquitur” but he has applied it incorrectly. You were not in control of your helmet as it banged into the car.

Your helmet did not fly off with no obvious cause. If it flew off while riding, he’d be right. These arguments are all superficially attractive until you know something about helmets.

Statistics reveal that in about one in five blows to the head involving a motorcycle the helmet is forced off the head. Even perfectly fitted helmets come off, as the tragic death of Marco Simoncelli at the 2011 Malaysian GP reveals.

A helmet is a design compromise. You have to get it on and off, it has to be aerodynamically stable and it has to pass EU tests for impact resistance. Your helmet came off during a vehicle strike. That is very common. It protected your head during the impact. But a helmet, with unpredictable forces put through it, can come off.

Andrew Dalton

RiDE Magazine November 2014

www.ride.co.uk

Posted by Andrew Dalton. Last modified: March 26, 2018 at 11:26 am

Andrew Dalton is a highly experienced trial lawyer who delights in taking on difficult and demanding motorcycle cases. He has a tough and relentless litigation style and is utterly focused on getting the best possible outcomes for his clients.

Comments

  1. William Cross IVOctober 15, 2018

    My son had a wreck in which his helmet came off. Do you know anyone in the states that can help. It was proper size and buckled properly. Thanks.

  2. Andrew PrendergastOctober 19, 2018

    Dear Mr Cross,

    I am sorry to hear about your son’s accident. As you may have gathered, we are motorcycle solicitors who are based in England and Wales and unfortunately we do not have any contacts in the States.

    I am sorry I cannot be of any assistance and hope you find someone who can advise.

    Yours sincerely,

    Andrew Prendergast

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